Delaware Department of JusticeAttorney General
Kathy Jennings

Open Government

Freedom of Information Act

Attorney General Kathy Jennings is committed to open and accessible government. In 1977, the General Assembly passed Delaware’s Freedom of Information Act (FOIA) to ensure that government be open and accountable to the people.

Statewide FOIA Coordinator Trainings

The 2018 FOIA Coordinator training was held on November 7, 2018. A video of the presentation is available here, and slides of the presentation are available in PDF format.

The 2017 training for FOIA Coordinators was held on November 9, 2017 in Dover. Slides of the presentation are available in PDF format.

Frequently Asked Questions

Q. Are there any branches of government to which FOIA does not apply?

FOIA does not apply to the General Assembly or to the courts. They have their own rules for making proceedings and records open and available to the public.

Q. Are there any government meetings that the public cannot attend?

The public can be excluded from meetings of less than a quorum (usually a majority of the members) of a public body. Anyone who is being disruptive of a public meeting can be excluded. Executive sessions–meetings closed to the public– may be held to discuss personnel and other confidential matters, or to obtain legal advice from an attorney. Public bodies made up of one person do not have to have public meetings, nor do certain Boards, such as the Board of Pardons and Parole. Deliberations of certain Commissions, such as the Human Relations Commission, are not open to the public. The public can be excluded from meetings of the caucuses of the Delaware Senate or House of Representatives.

Q. How can the public find out about government meetings?

Generally, a public body must post notice of the date, time and place of a regular meeting at least 7 days in advance. The notice must include an agenda listing the main items of public business to be discussed, if one is available. Notice must be clearly posted where the public body’s principle office, or, if there is none, where it regularly meets. In addition, State agencies must post their meetings on the State of Delaware website

Q. Does the public have a right to speak at a public meeting?

Not under FOIA, which only gives the public the right to observe. Each public body has its own rules and procedures for public meetings, which must meet certain legal and constitutional standards regarding fairness and non-discrimination. The Department of Justice encourages public bodies to allow citizen participation.

Q. What kind of access does the public have to government records?

FOIA requires that the public body provide the public a reasonable time and place to inspect records and reasonable facilities for making copies.

Q. Are there records the public does not have access to?

FOIA and other state and federal laws prohibit disclosure of certain information, including.

Medical, personnel, or student records

Tax returns

Social Security numbers

Welfare records

Family Services records

Criminal history records

Investigative files

Prisoner records

Department of Motor Vehicles records

Moreover, except for the minutes of meetings of a public body, FOIA does not create an obligation for a public body to retain or create a record.

Q. How should a records request be made?

A FOIA request should be directed to the public body that has custody or control of the records. Many public bodies have information on their websites about how to make a FOIA request to that entity. Unless the public body has rules or forms for FOIA requests, no specific form is required. However, a request for records should be made in writing and should make clear that it is a FOIA request.

Q. How long does a public body have to respond to a FOIA request for records?

FOIA requires that a response giving or denying access be made as soon as possible, but not later than 15 business days from the day the request is received. However, if the request is for voluminous records, requires legal advice, or is for records in storage or archived, the public body must so inform the requestor within the 15 business days, and a reasonable time in which to give or deny access is then permitted.

Q. What charges can a public body make for providing records?

FOIA requires that there be a reasonable charge for copying costs. FOIA does not make any provision for those charges to be waived.

Q. What can a member of the public do if denied access to a public meeting or to a public record?

If you believe that a public body has violated, or is about to violate, FOIA you may petition the Attorney General to investigate the alleged violation.

Please note that, due to a substantial increase in the number of Freedom of Information Act (“FOIA”) petitions, the Department of Justice (“DOJ”) has revised its procedures with respect thereto. The DOJ will provide notice of any petition to the public body as soon as practical, but in any event no later than ten (10) days after receipt of the petition as required by 29 Del. C. § 10005(e). The DOJ may request a written response from the public body within three (3) business days of the public body’s receipt of such notice. The petitioner may then submit a reply within three (3) business days of receipt of the public body’s response, after which no further submissions will be accepted from either party absent exceptional circumstances. Similarly, in order to ensure that written determinations are promptly issued, any request for an extension within which to submit a response or reply will require a showing of exceptional circumstances. The DOJ may request supplemental information or argument from either party. Upon receipt of the aforementioned information, DOJ will issue a written determination. Any party may make a written request for clarification from the DOJ regarding its determination within five (5) business days after the determination is issued. Within three (3) business days of receipt of any such request, the DOJ will notify the parties regarding whether such request will be granted and, if so, provide a good faith estimate of when it expects to provide such clarification.

*BRINGING A COURT ACTION.
If the Department of Justice has determined that FOIA was violated, the person complaining of the violation may make a written request to the Attorney General to bring suit in court. But, regardless of investigation by the Department of Justice, anyone who believes their rights under FOIA have been violated may file suit in state court. Please be aware that time limits apply.